HIGH COURT OF AUSTRALIA

                                        Australian Agricultural Company

                                                           Vs.

                             Federated Engine-Drivers and Firemen's Association

                    (Barton A.C.J., Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.)

                                                  5 September 1913

Barton A.C.J.

In this case a number of the respondents to the arbitration proceedings out of which the special case,
just dealt with, arose (Federated Engine-Drivers and Firemen's Association of Australasia v. Broken
Hill Proprietary Co. Ltd. [No. 3][1]) are the plaintiffs, and the organization which is the claimant in
the arbitration is the defendant. The plaintiffs may be classed as the northern and southern collieries
of New South Wales, though there are other collieries, both northern and southern, which are not
parties to this action. The writ claims an injunction restraining the defendant organization from
proceeding against the plaintiffs with the plaint No. 6 of 1910 in the Commonwealth Court of
Conciliation and Arbitration, filed by the defendant organization against the plaintiffs, in violation
of the terms of the agreements between the several plaintiffs and the defendants dated 13th
December 1910, 3rd, 5th and 18th May 1911, respectively. The plaint is that which was in question
in the special case just dealt with, and the agreements are those which were relied upon in that case
so far as the present plaintiffs are concerned. The motion before us was for an injunction until after
the trial of the action. The terms of the agreements, their intention as gathered therefrom, and the
circumstances surrounding their execution have been very fully discussed. The main incidents in the
dispute in the course of which the agreements were made have been described in my judgment in
the special case. During certain arbitration proceedings under a plaint which has turned out to have
been a nullity during the time of the execution of the agreements, negotiations took place between
several of the plaintiffs and the defendants for the settlement of the proceedings which were then
supposed by both parties to be effective, and the agreements in question were framed in pursuance
of prior agreements between the organization and the associated proprietors of the northern and
southern collieries respectively. Those agreements are not before us, but it is apparent to me from
the terms of the consequent agreements and from the conduct of the parties in the arbitration
proceedings, that they confused an industrial agreement with an agreement under sec. 24. They
seem to have thought that the agreements as framed would operate as industrial agreements, and
would, if filed, as they were filed, in the office of the Industrial Registrar, operate under sec. 24
also. It is probable that both sides had it as their object and intention to obtain from those
agreements every security and advantage that the Arbitration Act could afford. The agreements, as
was decided to-day on the special case, fail to be industrial agreements within Part VI., and they fail
to be agreements under sec. 24. Consequently, they are without the sanctions and attributes which
they would have possessed had they conformed to the terms of the Statute. The parties supposed
that a valid industrial agreement executed during arbitration proceedings would operate under sec.
24 as well, but the dominant intention was that these should be effective industrial agreements
within Part VI. of the Act. It is now contended that if not good as industrial agreements, and in my
opinion they are not good as such, they were intended to operate at common law failing a valid
operation under Part VI.; but the plaintiffs base their claim for an injunction mainly upon that
supposedly valid operation, and they have only relied on the effect of them (if any) at common law
as a possible alternative, though very naturally they were more insistent on that aspect of the matter
as the failure to comply with Part VI. became more apparent. There are many other questions in the
case, but I cannot avoid the conclusion that the substance of the matter lies in this question:--Do
these documents represent actually and fully the intended agreements between the parties? It
appears to me clear that they do not. The parties were aiming at the production of an instrument
which would have certain statutory effects and give them certain statutory remedies in case of
breach, and they looked no further than that.

They have failed to compose an agreement with these attributes. I think the circumstances shown in
evidence negative the idea that they ever in their minds assented to and executed these particular
agreements for the sake of or in contemplation of any effectiveness they might possibly possess at
common law. They had no thought of common law obligations. They were thinking only how they
might secure the statutory advantages and remedies. My belief is founded a good deal upon the
evidence read to us concerning the proceedings in the Arbitration Court both before and after the
passage of the amending Act. I believe upon all the facts that if they had been told that the form
adopted would not secure these results they would not have entered into these agreements at all, or
into any that would not secure what they wanted. Both sides would have spurned the offer of an
agreement destitute of any sanction for its due observance except the shadowy security of an action
for nominal damages in case of breach. They believed that this was an industrial agreement effective
to put an end to the industrial litigation which they supposed to be then validly proceeding. It was in
that view, and at the same time to secure reciprocal remedies equal in practical efficacy to those
conferred by an award, remedies which would be secured by the industrial agreement which they
mistakenly proclaimed that they had made, that they executed these documents.

If the document merely lacked some provision intended by the parties, there could now be no
rectification. The parties cannot be placed in the position they would have occupied if the mistake
had not taken place, and the agreement in such a case would not, I think, be enforced by injunction.
However that may be, it is clear that enforcement of a document the legal effect of which is far short
of conforming to the manifested intention in the minds of both parties, would never be granted by
the injunction of this Court. I speak in the sense that in my view the evidence is that this paper is not
their agreement, and I do not see how the position which existed between them in May 1911 can
now be re-constructed. See Halsbury's Laws of England, vol. xxi., pars. 21 to 24. Having arrived at
this opinion upon the whole evidence and in view of circumstances such as were not before the
Court when it pronounced upon the effect of the agreement in the case of J. C. Williamson Ltd. v.
Musicians' Union of Australia[2], I do not suggest or think that the decision in that case is in any
way impugned by the conclusion at which I arrive upon the material presented in this case. Further,
the question of negative covenant, so much discussed at the bar, does not arise where the conclusion
of the Court is that the document put before it does not represent the assenting minds of the parties.
There is no covenant. The defendant can truly say "Non haec in foedera veni." It is enough to say
that in such a case the Court will not grant an injunction.

I am therefore of opinion that the motion must be dismissed, with costs.

Isaacs J.

The plaintiffs seek an injunction to restrain the defendants from proceeding further with their plaint
in the Commonwealth Court of Conciliation and Arbitration, on the ground that by reason of the
agreements referred to in the writ of summons the defendants have disentitled themselves to
proceed.

The plaintiffs' contention is put in two ways. First, it is said that the agreements were made during
the pendency of the arbitration proceedings, therefore the dispute in controversy was terminated,
which not only ended the President's jurisdiction, but inherently amounted to an abandonment of all
claims in respect of it. Next, it is said that in some of the agreements there is an express negative
covenant, whereby the defendants stipulated they would not raise a new dispute, and would consent
to exempt the plaintiffs from all State or Commonwealth determinations or awards during the
currency of the agreement; and in the other agreements, it is urged the same covenant should be
implied.

As to the alleged implied covenant, the settled rule is that the Court cannot imply it, unless "the
Court is necessarily driven to the conclusion that it must be implied." See the authorities collected in
my judgment in Nelson v. Walker[3].

In this case I need not say more than that such necessity does not exist; because the implied
covenant could not carry the plaintiffs' case further than the express covenants, and if they cannot
sustain their contention with regard to the agreements containing the express covenants, they could
not profit by the suggested implication.

Now, there are two positions in law which I take to be now firmly established. One is that the right
to an injunction such as is claimed--supposing all special objections absent--depends on the
conduct of the defendant towards the plaintiff in respect of the litigation the subject of the
injunction. The conduct may consist of contractual relations, or it may consist of other conduct
making it inequitable to proceed. This is clearly fixed by In re Connolly Brothers Ltd.; Wood v.
Connolly Brothers Ltd.[4]. Again, supposing a valid contract containing a negative contract with no
supervening recognized defence, the plaintiffs' right to insist on it leaves no discretion to the Court:
Doherty v. Allman[5] and McEacharn v. Colton[6]. But that always supposes a present right as
between the parties to stay the proceedings complained of. And I am not prepared to assent to the
argument that an injunction against a party who initiates a proceeding in another Court will lie on
the ground that the facts show that that other Court has no jurisdiction. The case of London and
Blackwall Railway Co. v. Cross[7] looks the other way. It is not necessary to determine it finally
here, but I could not accede to the contention without further persuasion.

If, however, the defendants did for valuable consideration deliberately put an end to the old dispute,
it might well be said to be inequitable and oppressive to proceed with the old proceeding. That
aspect and the question of the negative covenant may, for the purposes of this case, be considered
together.

We have already decided in the special case just determined, that these agreements have no validity
as industrial agreements under the Act. Mr. Campbell, however, urged with great earnestness and
force that it is not inconsistent with failure in statutory vigour, that a bargain should have a binding
common law effect.

As an abstract proposition, that cannot be denied, but it depends entirely on the intention of the
parties. So one necessary question comes to be this, and, as the plaintiffs are resting upon it to
support their injunction, they have the onus of establishing it: Does it appear, actually or probably
that the parties intended their agreement to operate as a common law agreement? If not, then not
even in an interlocutory application (Preston v. Luck[8]) should the injunction be granted.

The intention of the parties to a written contract must be ascertained according to legal rules.

For the purposes of this case it will be sufficient to refer to three authorities. In Smith v. Cooke[9]
Lord Halsbury L.C. said:--"One must take the language of the instrument itself in its ordinary and
natural meaning, and having endeavoured so far as one can to construe it in that ordinary and
natural meaning it does not matter that it appears not to carry out the view that one would in the first
instance have imagined the parties intended it to carry out." And further on:--"I must say I for one
have always protested against endeavouring to construe an instrument contrary to what the words of
the instrument itself convey, by some sort of preconceived idea of what the parties would or might
or perhaps ought to have intended when they began to frame their instrument." Those observations,
which only declare emphatically what is undoubtedly the law, leave it clear that for the alleged
intention as to its operation we cannot depart from the language of the instrument itself.

But in Inglis v. Buttery[10] Lord Blackburn says:--"Quite consistently with that, I think you may
while taking the words of the agreement, look at the surrounding circumstances, as Lord Ormidale
expresses it, and see what was the intention. You do not get at the intention as a fact, as Sir James
Wigram in his Treatise on Extrinsic Evidence calls it, but you see what is the intention expressed in
the words, used as they were with regard to the particular circumstances and facts with regard to
which they were used. The intention will then be got at by looking at what the words mean in that
way, and doing that is perfectly legitimate."

In Van Diemen's Land Co. v. Table Cape Marine Board[11] Lord Halsbury L.C., for the Privy
Council, said:--"The time when, and the circumstances under which, an instrument is made, supply
the best and surest mode of expounding it."

Now, when we read the agreement here by the light of the surrounding circumstances, it is
impossible to discover any intention to treat it as a statutory agreement and, failing that, as a
common law agreement. The dominant feature of the agreement in this respect are the introductory
words, because by them the instrument itself expressly states its own nature, and impresses upon
itself a character that is wholly opposed to such an intention as is suggested.

The opening words are: "This industrial agreement made pursuant to the Commonwealth
Conciliation and Arbitration Act 1904" between the parties mentioned, and referring to the
defendants as "an organization of employés registered pursuant to the provisions of the said Act."
Clause 16 also tends to confirm the view derived from the introductory words, but as that and every
other clause must be read by the light of the initial declaration, which covers and governs them all, I
regard this clause as confirmatory only. My main reliance is on the declaration of contractual
character at the threshold, so to speak, of the document.

Now, it is absolutely impossible that this instrument could operate simultaneously as a statutory and
as a common law agreement.

Apart from other possible differences, these exist. As a common law agreement no sanction for
breach exists except an action for damages by or against the organization; as a statutory agreement
sec. 78 provides for penalties; as a common law agreement its duration is three years exactly from
its date; as a statutory agreement it does not necessarily terminate then but continues by virtue of
sec. 81 until a month after written notice to determine it. As a common law agreement it may be
rescinded or varied by a common law agreement, or superseded by an award; as a statutory
agreement it can only be rescinded or varied by another industrial agreement; so that two
contradictory agreements--the new common law agreement and the old industrial agreement
might--on the plaintiffs' contention co-exist.

I say nothing as to the legality with reference to New South Wales law of such a contract as a
common law agreement so far as it purports to exclude the defendants from recourse to the
industrial authorities of that State.

But, apart from such a consideration, it is in my opinion clear that neither from the internal contents
of the document itself, read by the aid of the surrounding circumstances, nor from all the extraneous
facts adverted to in argument, can it be taken that the parties or either of them intended the
agreement to be other than one resting solely on the Commonwealth Conciliation and Arbitration
Act. Whether it was designed to rest on sec. 24 or Part VI. is immaterial for the present case.
Admittedly, sec. 24 has not been complied with, and, as we have held that Part VI. is not applicable,
it follows that the plaintiffs' point as to the agreement being a common law contract fails.

I have said nothing on the subject of mistake because there was no mistake on either side. If we
could read the document as amounting to a common law agreement, alternatively with having its
intended statutory force, the question of mistake would arise.

As that is impossible, the rights of the parties depend upon an agreement the construction or effect
of which is not attributable to mistake, but is contested merely on ordinary principles of
interpretation.

Those considerations form of themselves one sufficient reason to dispose of the case, and in
ordinary circumstances I should not proceed to consider the other branch which was fully argued.
That branch is: Assuming the document was intended to operate, and in all other respects did
operate as a valid common law agreement, will an injunction lie to enforce the stipulation not to
resort to the Commonwealth tribunal of arbitration to settle any dispute that might arise.

But the circumstances that in my opinion call for its consideration are very special and urgent. There
are, as is known, a great number of agreements of somewhat similar character in existence; and
doubtless they differ in some respects; thousands of people are immediately concerned with them,
both employers and employés; and a large proportion of the population of the Commonwealth are
more or less directly interested in the orderly progress of the industries they affect. To determine the
first branch, and leave the matter there without expressing any views as to the second, by which the
correctness of the decision in the Musicians' Case[12] is deliberately challenged, would lead to a
false impression that we affirm the accuracy of that case, which in its essential facts cannot be
distinguished from the present case; to say that we leave it in doubt for future decision would only
disturb the minds of those immediately concerned without affording any guidance, and would be
certain to cause further litigation and expense; and so having regard to the whole situation, I
conclude our plain duty is to decide the second branch also. The matter should at once be freed from
all possible doubt.

As to the propriety of reconsidering our prior decisions at all, the question has been recently argued
most exhaustively in a case now pending, and we are in a position to express our views upon it. It is,
I apprehend, beyond question our duty to accept any rule laid down by the Privy Council on the
subject of general judicial conduct. In some cases that body governs us, and in all others it affords
an appropriate model for our guidance.

Now, the Privy Council has never countenanced the doctrine that its own decisions are not
reviewable. It has never accepted the theory of the House of Lords as to the immutability of
decisions of that tribunal, a theory which rests on a very special ground--namely, that House of
Lords decisions are in the nature of acts of legislation. See per Lord Campbell in Bright v.
Hutton[13] and in Beamish v. Beamish[14]; per Lord Halsbury L.C. in London Street Tramways Co.
v. London County Council[15], and per Sir Frederick Pollock in the Law Quarterly Review for
1898, vol. xiv., p. 331.

But cessante ratione cessat lex, and as no such constitutional theory applies to the Privy Council
that body has never followed the consequential doctrine. In Read v. Bishop of Lincoln[16], after full
consideration of the subject, Lord Halsbury L.C., as to previous decisions of the Judicial
Committee, laid down for himself, Lord Hobhouse, Lord Esher, Lord Herschell, Lord Hannen, Lord
Shand and Sir Richard Couch, the rule to be followed in these terms:--"Whilst fully sensible of the
weight to be attached to such decisions, their Lordships are at the same time bound to examine the
reasons upon which the decisions rest, and to give effect to their own view of the law."

There we have laid down for us, by the tribunal by which we are in most respects controlled, that it
is the primary duty of even that august tribunal, to consider for itself at the instance of every suitor
before it, what is the law by which he is bound. A prior decision does not constitute the law, but is
only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal,
may be wrong, in the opinion of those whose present function is to interpret and enforce the law;
and if the reasons given appear when examined to be unsound, then, say the Judicial Committee,
they are bound "to give effect to their own view of the law"; otherwise Judges arrogate to
themselves the position of legislators. The Privy Council has in fact reconsidered its own decisions
on various subjects for various reasons, and has overruled them.

Thus in Kielley v. Carson[17] an exceptionally strong Committee overruled a previous case on
Parliamentary powers, and it is worthy of note that on this occasion it included Lord Campbell, to
whom more than to any other Judge may be attributed the now settled doctrine of the House of
Lords.

In Cushing v. Dupuy[18] the Privy Council reviewed its prior decision as to the prerogative of the
Crown to admit appeals. Their Lordships said of the earlier decision[19]:--"This case, moreover, if
not expressly overruled, has not been followed, and later decisions are opposed to it."

Nothing could be more decisive that the general rule quoted from Read v. Bishop of Lincoln[20];
and further, nothing could more strongly emphasize the fact that the doctrine of the House of Lords
is anomalous and rests upon its anomalous position in the constitutional and juristic history of
England, than the circumstance that it was the same learned Judge, Lord Halsbury, who delivered
the widely differing pronouncements in the House of Lords and the Privy Council respectively.

As late as 1907 Sir Frederick Pollock, in a note to Bright v. Hutton[21], observes in
contradistinction to the House of Lords, that "the Judicial Committee does not hold itself bound to
follow its own previous rulings, neither do American Courts of last resort." And I may add, that
neither of those illustrious tribunals, fortified as they both are by long experience, the latter
possessing a record of a century and a quarter of stress and strain, in which it has earned, as Lord
Herschell testified in Mills v. Armstrong; The Bernina[22], a "high character for learning and
ability," trembles at the spectre of instability. That is a danger which the good sense of those
tribunals, and every other, always where necessary sufficiently guards against.

Unless, therefore, this Court is to be regarded as possessing a nearer approach to infallibility than
the Privy Council--and I am unable to press such a claim--no reason presents itself to my mind for
refusing to follow the guidance of that august tribunal whose determinations are final in a higher
and more decisive sense than any we are empowered to give.

The rule of the English Court of Appeal is practically the same as that of the Privy Council: The
Vera Cruz [No. 2][23] and Kelly & Co. v. Kellond[24]; Mills v. Jennings[25]; so with the English
Divisional Court: Kruse v. Johnson[26]. The Lord Chancellors of England adopted the same
practice. See per Jessel M.R. in Henty v. Wrey[27]. As to co-ordinate Courts, see per Brett M.R. in
Kelly & Co. v. Kellond[28], and per Pollock C.B. in Taylor v. Burgess[29]. The Supreme Court of
Canada adopted a like rule in Desormeaux v. Ste. Thérèse[30], where it reversed, in a Court of six
Judges, its prior decision on the question of its jurisdiction in appeals from Quebec on matters of
prohibition given twelve years before by a bench of five Judges, only one of whom was party to the
later decision.

In Australia the Supreme Courts of New South Wales and Victoria, at all events, have maintained
their authority to overrule prior decisions of their own.

As to American Courts reference has already been made to a statement by Sir Frederick Pollock.

This is confirmed in a note in Cooley's Constitutional Limitations, at pp. 86, 87, containing a
passage from the case of Pratt v. Brown[31], to which attention was drawn, during the argument in
the prohibition case now pending, by my brother Rich. That passage embodies what appears to me
to be sound sense, and to accord generally with what has fallen from the English bench with
reference to questions of ordinary law. See also Vail v. Arizona[32].

But in addition to that, Sir Frederick Pollock, in the Law Quarterly Review for 1898, vol. xiv., p.
331, already cited, further says:--"The Supreme Court of the United States, as is well known, does
not hold itself bound by its own decisions. Ample reasons for this practice--reasons to which we
have no analogy in England--may be found in the high constitutional functions of that Court." And
see an illuminative passage in Willoughby on the Constitution, vol. i., pp. 51, 52, which brings the
review of the question down to 1910, and from that passage I am impelled to quote a few lines
having special reference to constitutional questions:--"In Washington University v. Rouse18 Wall.,
439. Justice Miller said: With as full respect for the authority of former decisions as belongs, from
teaching and habit, to Judges trained in the common law system of jurisprudence, we think there
may be questions touching the powers of legislative bodies which can never be closed by the
decisions of a Court. There are indeed good reasons why the doctrine of stare decisis should not be
so rigidly applied to the constitutional as to other laws." The learned author then proceeds to state
reasons which need not be here quoted at length.

In Pollock v. Farmers' Loan and Trust Co.[34] Fuller C.J. says:--"Manifestly, as this Court is
clothed with the power, and entrusted with the duty, to maintain the fundamental law of the
Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional
question if it is convinced that error in principle might supervene."

The oath of a Justice of this Court is "to do right to all manner of people according to law." Our
sworn loyalty is to the law itself, and to the organic law of the Constitution

first of all. If, then, we find the law to be plainly in conflict with what we or any of our
predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving
effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the
Court should be persistently wrong than that it should be ultimately right.

Whatever else may be said with respect to the reconsideration of former decisions--and it is
unnecessary here to consider the principles upon which the Court should act in particular cases--so
much at least emerges as is undoubtedly beyond challenge, that where a former decision is clearly
wrong, and there are no circumstances countervailing the primary duty of giving effect to the law as
the Court finds it, the real opinion of the Court should be expressed.

In my opinion, where the prior decision is manifestly wrong, then, irrespective of consequences, it
is the paramount and sworn duty of this Court to declare the law truly. Lord Herschell, one of
England's greatest jurists, held that view most unmistakably: Airey v. Bower[35]. Speaking of the
Wills Act, a decision which might have been acted on extensively in disposing of property, the
learned Lord said:--"Of course if it were clear that the construction put by the Courts upon the
sections was wrong, it would be our duty, disregarding the result, to express a contrary opinion."

Such is my personal opinion, founded upon that and similar passages in other judgments of high
authority, though it is not strictly necessary in this case to go further than to say that the decision in
the path of the defendants' argument is, in my opinion, clearly erroneous, and that no circumstances
exist which could raise an obstacle of expediency in the way of correcting it.

In the Musicians' Case[36] it was held that a clear agreement of the nature indicated, not otherwise
impeachable, could and ought to be enforced by injunction.

In my opinion, that question ought to be determined one way or the other on a very broad ground.
The Constitution, perceiving the immense importance of preserving peaceful and continuous
conditions of industry in the Commonwealth, expressly introduced by sec. 51 (XXXV.) a power in
Parliament to provide for the prevention and settlement of inter-State industrial disputes by
conciliation and arbitration. By covering sec. V. whatever law Parliament should make on that
subject is to bind all the Courts and Judges on this continent. Parliament has made such a law of
which the keynote is to carry out the principle of the Constitution, and has provided the designated
and appropriate tribunal, and the defendants here desire to approach it with an alleged cause for
intervention.

It is obvious that if the principle of both Constitution and Act be as stated, and as explained at
greater length in Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill
Proprietary Co.[37], it cannot be within the power of one of the parties to destroy the rights of the
general community by a bargain with the other party to suppress the tribunal, should the occasion
for its interposition arise.

No contract that purports to do that either directly as in the present instance, or indirectly by
interposing any term in the nature of a condition precedent, or in any other way, can bar the
entrance to the arbitration tribunal, commissioned by the highest authority to maintain the industrial
peace of Australia.

I have in the Musicians' Case[38], in greater detail and with somewhat analogous instances, stated
that the stipulation here relied on by the plaintiffs is contrary to public policy. And as the public
policy of industrial peace is inscribed in the Constitution itself and effectuated by Act of Parliament,
the views I took there, resting as they do on the high ground of principle just stated, should in my
opinion be adhered to.

On both branches therefore, each being an equal and sufficient judicial ground of this judgment, the
plaintiffs must fail.

Higgins J.

The motion in this case is made by some only of the respondents to a plaint in the Court of
Conciliation, by those who are proprietors of northern collieries and of southern collieries in New
South Wales; and they join with them some proprietors who are not respondents at all.

An injunction is sought restraining an organization of employés from proceeding against the
plaintiffs with the plaint, in violation, as alleged, of the terms of separate agreements made with the
separate proprietors. No objection has been taken to the unwarrantable joinder of plaintiffs and of
causes of action in one writ. The several agreements are not even in the same terms; there has been
no order for consolidation; and if we now deal with some twenty-one actions in one proceeding, the
case must not be regarded as a precedent. I propose to consider first the effect of the agreement
made with the Australian Agricultural Co. as, if the plaintiffs cannot succeed on that agreement,
they cannot succeed at all. No other agreement presents a stronger case for the plaintiffs.

Mr. Campbell relies for his equity on a negative covenant of the organization, express or implied,
not to proceed with any plaint. He admits that he cannot ask for an injunction on the ground that
there is no dispute with the plaintiffs. The agreements have yet to be considered in the Court of
Conciliation, with all their circumstances, before the President can be satisfied that the plaintiffs
respectively are parties to the dispute referred to in the plaint. The position taken is that the
plaintiffs are, by virtue of the agreement, entitled to be no further troubled by any plaint, dispute or
no dispute; and Mr. Campbell relies on the recent case of J. C. Williamson Ltd. v. Musicians' Union
of Australia[39]. I confess that I should have thought the proper course, as a matter not of
jurisdiction, but of discretion and of practice, would be to refuse an injunction until the Court of
Conciliation is found to ignore any rights of the plaintiffs under the agreements. That Court has full
power to relieve the plaintiffs of further attendance at the arbitration proceedings; it has power even
to dismiss the matter or to refrain from further hearing it if it appear that further proceedings are not
necessary or desirable in the public interest (sec. 38 (h)). But I propose to deal with the points of
substance argued before the Court.

In the first place, it is now settled, by the decision of this Court on the case stated under sec. 31, that
this is not an industrial agreement under Part VI. of the Act. But Mr. Campbell urges that it is
nevertheless binding on the union as an ordinary contract at common law. The seal is the seal of the
organization; unless the organization can make such an agreement, the agreement is void--has not
been made. The organization is a statutory corporation, created for limited statutory purposes; and
the power to make the agreement must be affirmatively shown. It can make an agreement for land
for its purposes under sec. 58; it can make an agreement for settlement of a dispute of which the
Court has cognizance under sec. 24; and it can make an agreement providing for some other method
of conciliation and arbitration, under Part VI. Its powers would seem to be limited by sec. 51
(XXXV.) of the Constitution to agreements which are strictly relating to or incidental to the
processes of "conciliation and arbitration." But even if, under Schedule B to the Act, the
organization may take to itself further powers as to agreements (for, according to Schedule B, "the
rules ... may also provide for any other matter not contrary to law"), yet it has not taken any such
further powers. Rule 12 relates merely to the mode of execution of documents--such documents as
the organization may lawfully execute. It may be expedient that the organization should have such
powers; but the limitations of sec. 51 (XXXV.) of the Constitution must always be remembered.
Indeed, in the Jumbunna case[40], the learned Chief Justice said as to sec. 58:--"Remembering that
the functions and powers of every corporation are limited, I think that these words" ("for the
purposes of this Act") "may be read as meaning only that corporations so constituted shall have the
powers and functions conferred by the Act."

I am not at present by any means satisfied that any agreement not under the Act can bind the
organization--or its future members--as an ordinary agreement for wages and other conditions.

Then it is urged for the organization that the agreement, if made at all, was made subject to a
condition, either that it should be certified and filed under sec. 24, and operate as an award, or that it
should be an industrial agreement under Part VI. There is no doubt that it was meant to be an
industrial agreement under Part VI.; whether both parties intended also to have it certified under
sec. 24 is doubtful; and I shall assume, in favour of the plaintiffs, that it was meant merely to come
under Part VI. It is headed in the form prescribed in Part VI.: "This industrial agreement made
pursuant to the Commonwealth Conciliation and Arbitration Act 1904 this fifth day of May 1911
between the Australian Agricultural Company ... of the one part and the Federated Engine-Drivers
and Firemen's Association of Australasia an organization ... registered pursuant to the provisions of
the said Act ... of the other part." It contains an agreement as to the minimum rates of wages for
several classes of workers; for hours and other conditions; for aged and infirm workers. It suspends
the sliding scale of wages theretofore in practice. It provides for a conciliation board for disputes
arising under the agreement; and the Deputy Registrar is to decide the dispute if the board be evenly
divided. The assistance of the Deputy Registrar is agreed to, for a final decision, in four different
contingencies under the agreement. Then (clause 16): "This agreement shall be filed in the office of
the Industrial Registrar appointed under the Commonwealth Conciliation and Arbitration Act 1904
and shall come into operation on the twelfth day of May 1911 and shall continue in force for a term
of three years from the date of making thereof." The meaning clearly is that the agreement shall
operate as an industrial agreement under Part VI., with all the incidents of such an industrial
agreement. That is to say, the intention was to bind all who are members of the organization at any
time during the three years' term (sec. 77); it was to be enforceable by penalty (sec. 78); enforceable
as under awards of the Court; it could not be rescinded or varied by any agreement except another
industrial agreement (sec. 79); in a certain event it was meant to be varied by the Court (sec. 80);
and, after the term, it was to continue in force until one month's notice from one party to the other
(sec. 81). Now, none of these results follow if the agreement is to be treated as operating outside
Part VI. If it is to be so treated, the only remedy for a breach of the contract by the employer is an
action for damages at the suit of the organization; and the organization could not show that it had
sustained damages. There is no penalty payable should an employé be paid less than his minimum
rate, &c. This position is not what the parties bargaining agreed to. It is said for the organization
that the contract was made subject to a condition implied, and that the condition has not been
fulfilled. To my mind, this is not an adequate view. To my mind, the agreement, on its face, was one
impossible of performance from the first, and, as such, void. It never could be filed (legally), it
never could be operative, under Part VI. The matter is novel; but in principle I do not see how it is
to be distinguished from the cases of Harvy v. Gibbons[41]; Duvergier v. Fellows[42]; Faulkner v.
Lowe[43]; Bank of Hindustan v. Alison[44]. An analogous position may arise under the Torrens
Acts, which limit the documents that may be registered. Suppose two neighbours, A and B, agree
that A may take trees from B's land in consideration of B being allowed to use part of A's land for a
playground for 50 years--the agreement to be registered under the Act: can it be contended that
when the Registrar refuses to register such an agreement, and when B finds that he cannot pass his
right to his transferrees, as both he and A intended, he is still to submit to the cutting of his trees?

To treat the union, or to treat the employer as bound by the other terms of the agreement, when
these terms, as to Part VI. so vital and so radical, were not and could not be enforced in law, would
be to fix a party to an agreement which he had not made. The appropriate answer is Non haec in
foedera veni. The cause of the agreement for the impossible is mutual mistake--a mistake in law;
what we find is an agreement for the impossible, and if it is not binding as a whole, it is not binding
at all.

The enforcement of the contract by injunction is, in substance, another mode of enforcing specific
performance (Barret v. Blagrave[45]; Leake on Contracts, 1117); and--with rare exceptions, in such
cases as Lumley v. Wagner[46]--the Court will not enforce performance of a part unless it can
enforce performance of the whole (Clarke v. Price[47]; Ellis v. Colman[48]; Merchants' Trading Co.
v. Banner[49]). In short, the Court will not enforce a contract unless the parties can be "put in the
condition for which they stipulated" (In re Mercantile and Exchange Bank; Ex parte London Bank
of Scotland[50]). In the present case--to paraphrase the expressions used by Turner L.J. in
Broughton v. Hutt[51]--the organization never intended to be bound unless it got an agreement
under Part VI., and the employer never intended either party to be bound unless it got such an
agreement.

The next point urged by Mr. Ferguson is, that even if the agreement were in other respects
enforceable as an ordinary agreement at common law, the negative covenant, which Mr. Campbell
asserts--express or implied--is void as being against public policy. I shall here say that I have much
doubt whether clause 10 of the agreement contains a negative covenant so sweeping as Mr.
Campbell contends. The first part of the clause deals with future demands; the second part of the
clause provides that the organization "shall consent to the employer being exempted from all or any
award or awards," with some ill-conceived phrases following. But again I assume, in favour of the
plaintiffs, that their construction of the clause is right. Now, it must be taken, according to the
decision of the majority of the High Court, that the plaint did not come into existence until the 24th
November 1911; and therefore the agreement (5th May 1911) is to be treated as made before plaint,
but after demand and dispute. The question is: Is an agreement not to proceed for conciliation and
arbitration in the Court of Conciliation and Arbitration valid? For this question it must be assumed
that the dispute--the dispute referred to in the plaint--existed, and has not been terminated. There is
no reference to that dispute in the agreement; and the question whether that dispute still existed as
between the employés and the Australian Agricultural Co. at the time of the plaint remains to be
considered by the Court of Conciliation. If the dispute exists in fact, is an agreement between the
organization and an employer that no plaint shall be pressed, that no award shall be made, valid and
enforceable against the organization, assuming that such an agreement is within the competency of
the organization? In my opinion, such an agreement is in direct contravention of the Act. If there is
an actual dispute subsisting, whether the dispute ought to exist or not, it is provided that the Court
"shall" have cognizance of it, for purposes of prevention and settlement, in any one of the four cases
mentioned in sec. 19. Then the Court "shall ... hear inquire into and investigate" the dispute, "shall"
try to reconcile the parties (sec. 23); and, if it cannot procure an agreement under sec. 24, the Court
"shall" by an award determine the dispute.

Suppose an extreme case--suppose a dispute involving a widespread strike, stopping the wheels of
the industry, inflicting huge losses on the employers, the employés and the public, even causing
riots; suppose that the Registrar, under sec. 19 (a), certify (without plaint) that the dispute is "proper
to be dealt with by" the Court "in the public interest": is it to be said that the organization must
under its agreement oppose the settlement of the dispute, and even ask the Court to except this
employer from any arbitration? If the Court were established for the benefit of the employers and
employés only, there would be much more reason for saying that they must be bound by their
agreement (cf. Simpson v. Lord Howden[52]). But the Court is established for the benefit of the
public, as industrial disturbances injure the public as well as the parties directly concerned. No
agreement between private persons (I am still assuming that the dispute is not settled) can prevent
the operations of the Court with a view to the "peace order and good government of Australia."
Private agreements cannot be allowed to stand in the way of the Act; the Act involves, in essence,
an interference, in the interest of the public, with private agreements (cf. sec. 40, inter alia). The
Court deals with industrial actualities, with actual disputes, however the disputes have arisen, and
whether in breach of an agreement or not. As President of the Court, I have always insisted on the
principle that agreements should be upheld--"a bargain's a bargain"; but I recognize that in view of
some proffered immediate advantage employés are generally willing to sign almost any agreement.
If the employers can stop the Court's operations by agreements for three years, they can stop the
operations for thirty, for one hundred years; and the insertion of a clause in such agreements will
often paralyze the Court in its endeavours for peace. If such clauses can successfully be enforced,
private persons can bar the exercise of a public function. I do not like to put my view merely on the
principle recognized in Scott v. Avery[53]--that upon the general policy of the law "parties cannot
enter into a contract which gives rise to a right of action for the breach of it, and then withdraw such
a case from the jurisdiction of the ordinary tribunals." That principle is analogous; but the position
here is much stronger. The position is that a tribunal, of a novel and exceptional character, has been
created by the Federal Parliament under an Imperial Act, for the purpose of settling industrial
disputes, and as a substitute for the baneful remedy of "strike"; and any agreement between A and B
which has the effect of depriving, not only A and B, but the public, of the benefit of this tribunal, is
distinctly against the policy, and even against the express provisions, of the law. It was held, in
Coppock v. Bower[54], that an agreement to pay money in consideration of the payee abandoning a
petition against the return of a member of Parliament, a petition based on alleged bribery, was void,
because the proceedings on the petition were for the benefit of the public. It was held, in Nerot v.
Wallace[55], that an agreement to pay certain moneys to assignees in bankruptcy, in consideration
of their forbearing to proceed with an examination of the bankrupt before the Commissioners, was
void as contrary to the policy of the bankruptcy law; for, as was pointed out by Grose J., not only
the creditors, but the public, had a right to know the circumstances. There is no distinction in
principle.

On both these grounds, therefore--the ground that the agreement of the character intended is
impossible of performance, and the ground that it is void as against the policy of the Act--I hold
that if we are free to act on our view of the law the motion for injunction should fail.

But in deciding the case we are brought face to face with the recent decision in J. C. Williamson Ltd.
v. Musicians' Union of Australia[56]. That was a decision on a special case in which the question of
the invalidity of the agreement on the ground of public policy was not directly raised. The first
question turned on the retrospective effect of sec. 4 of the amending Act of 23rd November 1911;
the second question raised a question as to the jurisdiction of the High Court to enforce by
injunction an agreement not to make any further request or demand during the agreement. The two
learned Judges who gave the majority judgment (two to one) did not, in their judgments, discuss the
point of public policy at all; and I see that the union had not the advantage of being represented by
counsel. The precise agreement alleged in this case--an agreement not to proceed in the Court of
Conciliation in respect of demands already made--was not before the High Court in the Musicians'
Case. But the decision of the majority in that case clearly involves the position that an injunction
will lie in the High Court to enforce an agreement--a common law agreement--so as to prevent
recourse to the Court of Conciliation. In my opinion, that position is wrong; and I concur with my
brother Isaacs in his view that we are not only entitled, but are in duty bound, to overrule that case.

I must add that, even if there were no other ground for refusing the injunction, I should refuse to
make it perpetual (at all events) until the other respondents to the plaint--or at all events, the other
coal-owners--are made parties to the action, and given an opportunity to express their views. No
doubt, the right to the injunction must ultimately depend on the agreements to which the other
respondents are not parties; but the coal-owners who are in competition with these coal-owners are
interested in having these owners bound by the same conditions as themselves; and they should have
a chance of being heard. A claimant may not oppose the motion--may even be in collusion with the
plaintiffs, in order to impose the conditions sought on the others only. All that I say is that these
other coal-owners should be enabled to urge any relevant argument; and any unnecessary
appearance could be punished by costs. These other coal-owners may have agreements also.

Gavan Duffy Rich JJ.

In this case the Court is asked to restrain the defendants from proceeding against the plaintiffs with
the plaint No. 6 of 1910 in the Court of Conciliation and Arbitration, on the ground that to so
proceed would be in violation of the terms of certain agreements. The case is put in two ways. It is
first said that the agreements in question in fact settled the dispute existing between the parties, and
that consequently the Court of Conciliation and Arbitration has no longer any jurisdiction to
proceed in the matter. In the next place, it is said that the agreements contain either express or
implied undertakings by the defendants not to proceed with that or any other plaint during a
specified time. The plaintiffs have not satisfied us on either of these points. Whether we look at the
surrounding circumstances or confine ourselves to the agreements, we are driven to the conclusion
that the parties intended that their dispute should be settled only on the condition that the
agreements or memoranda of them were filed so that they might have operation under the
Commonwealth Conciliation and Arbitration Act, and that unless they had such operation they
should have no operation at all. It is now clear that they could have no operation under the Act, and
accordingly there is no ground for restraining the defendants from proceeding with their plaint. The
opinion which we have just expressed is, we understand, practically identical with that of the four
other members of the Court sitting in the present case, and in our view it is not consistent with the
judgment of the majority of the Court in J. C. Williamson Ltd. v. Musicians' Union of Australia[57].
That case was decided by the Chief Justice and Barton J., forming the majority of the Court, Isaacs
J. dissenting. The Chief Justice was strongly disposed to think that the agreement, which for present
purposes may be regarded as practically identical in form, and in the circumstances under which it
was made, with the agreements now sued on, was an industrial agreement within the meaning of the
Commonwealth Conciliation and Arbitration Act. We have just decided in Federated Engine-
Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. [No. 3][58],
that that view cannot be maintained. Both Justices were of opinion that the agreement, if not an
industrial agreement within the Act, was binding at common law and, subject to certain grounds for
invalidating it set out in the pleadings--which if established would have invalidated any
agreement--was enforceable against the defendants; on that ground they decided that an injunction
could go. If that agreement was enforceable these agreements are enforceable, and if an injunction
could have gone in that case there is no reason why an injunction should not go in this. It is true that
the view which now commends itself to all members of the Court was not considered in that case,
and for that reason it is said that our decision in this case should not be regarded as overruling J. C.
Williamson Ltd. v. Musicians' Union of Australia[59]. It is equally true that in the judgments of the
Chief Justice and Barton J. there is no reference to the question of public policy which induced
Isaacs J. to come to the conclusion that no injunction could be granted; they express no opinion on a
matter which to him seemed all important, though, as they did not adopt and act on his view, it may
perhaps be assumed that it did not commend itself to their minds. In these circumstances is it
desirable to leave that case without further comment, if we think that the view expressed by Isaacs
J. is correct? In our opinion, to do so would be to encourage confusion and error in the minds of
persons interested in Australian industries, and to invite costly and unnecessary litigation. We think
that the agreements, so far as they purport to preclude the defendants from having recourse to the
Court of Conciliation and Arbitration, are attempts to oust the jurisdiction of the Court, and are void
as against public policy. We adopt the reasons stated by Isaacs J. in his dissenting judgment in J. C.
Williamson Ltd. v. Musicians' Union of Australia[60].

Powers J.

This is a motion for an order that the defendants and their agents and servants, &c., should be
restrained, and that an injunction should be granted restraining them, from proceeding, until after
the trial of the action against the plaintiffs, on the plaint No. 6 of 1910 in the Commonwealth Court
of Conciliation and Arbitration, filed against the plaintiffs in violation of the terms of certain
agreements between the plaintiffs and defendants. The circumstances under which the application
for the injunction was made have been fully set out in the judgments already delivered. The question
we are asked to decide in this case is whether the agreements in question entitle the plaintiffs to an
injunction to prevent the defendants from proceeding further with the plaint.

It was contended for the plaintiffs: (1) that the agreements were industrial agreements under Part VI.
of the Commonwealth Conciliation and Arbitration Act (secs. 73-81); or (2) that they were
agreements that could be registered under section 24 of the Act; or (3) that the agreements were
binding as common law agreements apart from the question whether they could, or could not, be
made effective under the Commonwealth Conciliation and Arbitration Act.

It has been decided by this Court in the case between the same parties, submitted by the learned
President of the Court, that the agreements were not industrial agreements within the meaning of the
words "industrial agreement" under Part VI. of the Act. I agree with the judgments already delivered
so far as they decide that the agreements in question were only entered into on the joint
understanding of both parties that they were statutory "industrial agreements" under Part VI. of the
Act; and that they did not fully express the true will of the parties as common law agreements. I
agree with what my brother Higgins has said in his judgment on this point. I understand him to hold
that there is no doubt that the intention of all parties was to enter into an agreement enforceable by
penalty, and, generally, subject to the provisions of Part VI. (secs. 73-81) of the Act.

If the agreement is treated as outside the Act, it is an entirely different agreement; the only remedy
for a breach of the contract would be by an action for damages. That is not what the parties agreed
to. That was not the arrangement under which the organization agreed to settle the dispute. It is not
possible to perform the agreement made, as it has been held not to be an agreement within Part VI.
of the Act, and, if enforceable, it can only be enforced as an entirely different agreement, namely, as
a common law agreement. Such an agreement was not entered into by the parties. The parties
cannot be compelled to carry out an agreement they did not make. Specific performance of the
agreement really entered into cannot be enforced, and Courts will not enforce performance of part,
if the whole cannot be enforced. Further, this Court has already held, in the case stated by the
learned President, that it is his duty notwithstanding the production of the agreements to proceed on
the plaint, and to investigate the facts, nature, and circumstances of the said agreement. I therefore
concur in the view that the agreements in question do not, for the reasons I have given, entitle the
plaintiffs to the injunction asked for. The motion for the order and injunction asked for should be
dismissed.

Some of my learned brethren have dealt with other questions, which I do not think it necessary to
decide in this case, and I, therefore, do not propose to deal with them until it is necessary to do so. I
understood my brother Isaacs, however, to say that it was the duty of this Court to reverse the
decision in the Musicians' Case[61] for the reasons he gave in his judgment. Some of my learned
brethren have also dealt with that case. I think it only right to say I have not considered that case in
arriving at my decision, because I do not think the point on which this Court was unanimous was
raised in that case. My brother Barton says it was not, and could not be, raised on the facts in that
case. In any case we were not pressed strongly by counsel to review the decision of the Court in the
Musicians' Case[62], nor was there any argument in this case as to the judicial policy to be
considered by the Court before reversing one of its previous decisions. On the contrary, I understood
counsel for the defendants during his argument to say (and my notes bear that out) that he did
contend; (1) that it was not necessary to review the decision in the Musicians' Case[63]; (2) that the
decision in that case was not an authority against the contentions he submitted to the Court. He did
say that if the Court decided against him on the points submitted, he would ask the Court to review
the decision in the Musicians' Case[64]. The Court has not decided against him. The question has
not been considered by me--first, because it has yet to be decided in the action pending, after
hearing argument by the parties; secondly, because it was not necessary to do so; and, thirdly,
because the Court was not constituted as a Full Court to consider the review of any prior decision.

I add, with some diffidence as a very junior member of the Court, and without consulting any
member of the Court, that I am at all times prepared to consider the review of any decision of this
Court, by a Full Bench called to consider that question, and to reverse any decision if it is shown to
be clearly wrong, subject to the well known considerations to be applied to the particular case in
question at the time, according to the well known judicial policy of British, Australian and
American Courts, and I think of all Courts of appeal in English-speaking communities.

I decline even to consider a question of reversing a decision of this Court casually, or even seriously,
raised by counsel, not clearly urgent, and not raised before as full a bench as is available. If we do
not show some respect to our own Court's decisions, no counsel will feel safe in advising the public,
and it will create uncertainty and confusion. If it was necessary to decide in this case whether the
decision in the Musicians' Case[65] should be reversed, I would under the circumstances mentioned
follow the rule laid down by my brother Isaacs in this Court on more than one occasion (the latest, I
think, on the 18th March this year), and by the Judges of the Courts of appeal in England, Australia
and America in every case--namely, to follow the decisions given in their respective Courts until
they are reviewed and reversed by as full a bench as is available, called for the purpose of
considering the decision. In Allen Taylor's Case[66] Isaacs J. said:--"Whybrow's Case311 C.L.R.,
1. decided that the power of this Court to interpose by writ of prohibition where a Commonwealth
Court is proceeding without jurisdiction is given direct by the Constitution as original jurisdiction of
the High Court, and there being no authority to Parliament to annul that authority, any attempt to do
so necessarily fails. By that decision this Court, unless constituted as a Full Bench, is bound, and so
this case must be determined accordingly." That is a well recognized principle in all Courts of
appeal. For that reason I do not see my way to consider, at present, whether common law
agreements to settle disputes are against public policy, or any other question decided by the majority
of the Court in that case; or to consider any other question that it is not necessary to decide to enable
the Conciliation Court to continue its proceedings. The Conciliation Court can proceed with its
work by a decision on the one point we all agree upon, without disturbing any previous decision of
this Court. Urgent public need for the reversal of the decision was mentioned. I do not remember
hearing of it during the argument. The Conciliation Court is doing a great work, and doing it well,
and it is invaluable in cases where people cannot, or will not, settle disputes; but if disputes can be
avoided or settled without reference to the Court at all, it must, I think, be a public benefit instead of
a danger.

Motion dismissed with costs.

Solicitors, for the plaintiffs, Sparke & Millard, Newcastle, by J. Stuart Thom Bros. & Co.

Solicitors, for the respondents, Sullivan Bros.

[1] [1913] HCA 42; 16 C.L.R., 715.

[2] [1912] HCA 89; 15 C.L.R., 636.

[3] [1910] HCA 27; 10 C.L.R., 560, at p. 586.

[4] (1911) 1 Ch., 731.

[5] 3 App. Cas., 709, at pp. 719, 720.

[6] (1902) A.C., 104, at p. 107.

[7] 31 Ch. D., 354.

[8] 27 Ch. D., 497, at p. 506.

[9] (1891) A.C., 297, at pp. 298, 299.

[10] 3 App. Cas., 552, at p. 577.

[11] (1906) A.C., 92, at p. 98.

[12] [1912] HCA 89; 15 C.L.R., 636.

[13] [1851] EngR 657; 3 H.L.C., 341, at pp. 391, 392.

[14] [1861] EngR 475; 9 H.L.C., 274, at p. 339.

[15] [1898] UKHL 1; (1898) A.C., 375, at p. 381.

[16] (1892) A.C., 644, at p. 655.

[17] [1842] EngR 593; 4 Moo. P.C.C., 63.
[18] 5 App. Cas., 409.
[19] 5 App. Cas., 409, at p. 417.
[20] (1892) A.C., 644.
[21] 88 R.R., 126, at p. 127.
[22] 13 App. Cas., 1, at p. 10.
[23] 9 P.D., 96, at p. 98.
[24] 20 Q.B.D., 569, at p. 572.
[25] 13 Ch. D., 639, at pp. 648, 649.
[26] (1898) 2 Q.B., 91.
[27] 21 Ch. D., 332, at p. 346.
[28] 20 Q.B.D., 569.
[29] 5 H. & N., 1, at p. 5.
[30] (1910) 43 Can. S.C.R., 82.
[31] 3 Wis., 603, at p. 609.
[32] [1907] USSC 174; 207 U.S., 201.
[33] [1869] USSC 167; 8 Wall., 439.
[34] 157 U.S., 429, at p. 576.
[35] 12 App. Cas., 263, at p. 269.
[36] [1912] HCA 89; 15 C.L.R., 636.
[37] [1911] HCA 31; 12 C.L.R., 398, at p. 446.
[38] [1912] HCA 89; 15 C.L.R., 636.
[39] [1912] HCA 89; 15 C.L.R., 636.
[40] 6 C.L.R., 309, at p. 336.
[41] 2 Levinz, 161.
[42] [1828] EngR 882; 5 Bing., 248; 10 B. & C., 826; 1 Cl. & F., 39.
[43] 2 Ex., 595.
[44] L.R. 6 C.P., 222.
[45] 5 Ves., 555.
[46] 1 D.M. & G., 604.
[47] 2 Wils. C.C., 157.
[48] [1858] EngR 396; 25 Beav., 662.
[49] L.R. 12 Eq., 18.
[50] L.R. 12 Eq., 268, at p. 276.
[51] 3 DeG. & J., 501, at p. 505.
[52] 10 A. & E., 793; 9 Cl. & F., 61.
[53] [1856] EngR 810; 5 H.L.C., 811, at p. 847.
[54] 4 M. & W., 361.
[55] 3 T.R., 17.
[56] [1912] HCA 89; 15 C.L.R., 636.
[57] [1912] HCA 89; 15 C.L.R., 636.
[58] [1913] HCA 42; 16 C.L.R., 715.
[59] [1912] HCA 89; 15 C.L.R., 636.
[60] [1912] HCA 89; 15 C.L.R., 636.
[61] [1912] HCA 89; 15 C.L.R., 636.
[62] [1912] HCA 89; 15 C.L.R., 636.
[63] [1912] HCA 89; 15 C.L.R., 636.
[64] [1912] HCA 89; 15 C.L.R., 636.
[65] [1912] HCA 89; 15 C.L.R., 636.
[66] [1912] HCA 85; 15 C.L.R., 586, at p. 606.
[67] [1910] HCA 33; 11 C.L.R., 1.
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